This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP1997-CR

Cir. Ct. No.2009CF113

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT IV

State of Wisconsin,

Plaintiff-Respondent,

v.

Michael B. Buchanan,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Wood County:James
M. Mason, Judge.Affirmed.

Before Blanchard, P.J., Lundsten and Sherman, JJ.

¶1PER CURIAM. Michael Buchanan appeals a
judgment of conviction.The issue is
whether the circuit court erred by denying his presentence motion to strike
parts of the presentence investigation report.We conclude it did not.We
affirm.

¶2Buchanan pled no contest to one count of first-degree sexual
assault of a child and one count of child enticement.Before sentencing, he moved to strike certain
portions of the presentence investigation (PSI) report.The motion identified ten separately listed
portions of the report that he sought to strike.At sentencing, the court granted some of
those requests, but denied others. Buchanan
did not file a postconviction motion.Accordingly, the only decisions before us for review are those the
circuit court made at sentencing in denying portions of Buchanan’s motion to
strike.

¶3Buchanan argues that the court erred by not striking those
portions and by accepting them as true.However, Buchanan did not ask, either before or at sentencing, for an
evidentiary hearing to attempt to disprove that material.Nor did he otherwise attempt to present
evidence to disprove the portions he disputed.

¶4Buchanan appears to argue that the court was required to
order such a hearing on its own initiative once he disputed that material, but
he cites no convincing authority for that proposition.He relies on State v. Anderson,222 Wis.
2d 403, 412, 588 N.W.2d 75 (Ct. App. 1998), for the proposition that the court
has an important fact-finding role to perform if relevant facts are disputed at
sentencing.However, nothing in Anderson
places the burden on the court to initiate a hearing.On the contrary, other passages in Anderson
note that it was “trial counsel’s further duty to see that the accuracy of
those [PSI] matters was fully resolved by a proper hearing,” id.
at 410, and that Anderson was prejudiced by “[t]rial counsel’s failure to
pursue this matter by fully litigating the accuracy of those allegations,” id.
at 411.

¶5Buchanan asserts that he is not required to disprove the PSI
report assertions that he disagrees with.In support he cites State v. Hubert, 181 Wis. 2d 333,
345, 510 N.W.2d 799 (Ct. App. 1993).There, we declined to set a specific burden of proof regarding “other
acts” relevant to sentencing, and instead we regarded the use of such material
as a matter of discretion.Id.While Buchanan may be correct that he is not
required to disprove the disputed PSI portions, under Hubert neither is the
State or circuit court required to prove
them.Instead, the issue is left to the
discretion of the court.

¶6Thus, under Buchanan’s framing of the issue, the remaining
question is whether the circuit court erroneously exercised its discretion,
based on the limited record that was available to the court at the time of
sentencing.We conclude it did not.

¶7As to the reported telephone statements by Buchanan from
jail, the only basis he offered for the court to strike them was that his
attorney had not heard the statements in question in the recordings she was
provided, and which were supposed to contain those statements.However, Buchanan could have placed those
recordings in evidence for the court to listen to, or provided a transcript to
the court, but he did not.With Buchanan
making no attempt to provide the court with available evidence on the point,
the court could reasonably disregard counsel’s assertion and accept the version
described in the PSI report.

¶8Buchanan asserts that certain material in the PSI report
should not have been there if the agent had properly followed administrative
rules regarding sources of information for preparing PSI reports.More specifically, he argues that portions of
the report discuss other possible criminal conduct described in reports by and
interviews with other investigators and counselors, which involve multiple
levels of hearsay.However, Buchanan
does not present legal authority that the court is required to strike such
material, even if it were true that the code provisions were not followed.Furthermore, Buchanan did not attempt to
disprove any of these allegations with evidence at sentencing.Accordingly, we conclude that the court did
not erroneously exercise its discretion in declining to strike this material.

By the Court.—Judgment affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5. (2011-12).